903 F.

2d 996
5 Indiv.Empl.Rts.Cas. 1527

James Edward JOHNSON, Plaintiff-Appellee,

v.
Edward C. MORRIS, Individually and in his capacity as
Deputy
Director for Adult Institutions for the Virginia Department
of Corrections; Edward Murray, Individually and in his
capacity as Director of the Virginia Department of
Corrections, Defendants-Appellants.
No. 89-1761.

United States Court of Appeals,

Fourth Circuit.
Argued March 8, 1990.
Decided May 21, 1990.

Henry M. Massie, Jr., Sands, Anderson, Marks & Miller, Richmond, Va.,
for defendants-appellants.
Sa'ad El-Amin, El-Amin & Associates, Richmond, Va., for plaintiffappellee.
Robert B. Delano, Jr., Sands, Anderson, Marks & Miller, on brief,
Richmond, Va., for defendants-appellants.
Before ERVIN, Chief Judge, and HALL and WILKINS, Circuit Judges.
WILKINS, Circuit Judge:

Edward W. Murray and Edward C. Morris appeal the judgment of the district
court entered in favor of James E. Johnson on his claim that he was deprived of
a protected liberty interest without due process of law in violation of the
fourteenth amendment and 42 U.S.C.A. Sec. 1983 (West 1981). Finding no
liberty interest implicated, we reverse.

I.
2

Johnson is an employee of the Virginia Department of Corrections, and at the

time of the events surrounding this litigation he held the position of Warden of
Buckingham Correctional Center. Murray and Morris are also employees of the
Department--Murray as Director of Corrections and Morris as Deputy Director
of Corrections for Adult Institutions.

On March 31, 1988, a disturbance occurred at Buckingham. A Serious Incident

Report (SIR) prepared by the Watch Commander stated that a group of inmates
had refused to return to their cells and "[a] minimum amount of force and a
small amount of mace was used to move inmates into the buildings." Although
the SIR did not indicate that any injuries occurred, on the same date as the
disturbance an Inmate Accident/Injury Report was completed by a nurse at
Buckingham, stating that John Brown, an inmate, had been involved in an
altercation with security and five sutures were required to close a laceration on
his forehead.

In December 1988 Johnson's supervisor received an anonymous letter

concerning the March 31 incident. The letter charged "that an inmate at
Buckingham Correctional Center ... was assaulted by the Warden of that
institution while [the inmate was] in handcuffs...." The letter was forwarded to
the Office of Inspector General of Corrections, and E.R. Barrack of that office
was assigned to investigate this allegation. On December 22, during a brief
interview with Barrack, Johnson stated that during the effort to force inmates
back to their cells, inmate Brown spit in his face and swore at him. Johnson
further stated that he instinctively hit Brown in the face knocking him down.
As far as injuries were concerned, he contended that he did not see any and was
not aware of any at the time the SIR was completed.

Johnson subsequently learned that he was being investigated for striking a

handcuffed inmate and on January 18, 1989, met with Barrack a second time.
During this interview, he repeated his earlier statement in more detail and
contended that at the time of the confrontation Brown was "not cuffed or
anything else." Barrack issued a report to Morris on January 27, 1989,
containing summaries of interviews with Johnson and Brown as well as
summaries of statements of other witnesses who requested anonymity. The
report indicated that the statements confirmed that Johnson had been involved
in a confrontation with Brown and that he had struck Brown while Brown was
handcuffed and being restrained by other correctional officers.

During an interview with Morris several days later, Johnson repeated the

During an interview with Morris several days later, Johnson repeated the
statements he earlier made to Barrack. When asked by Johnson, Morris
declined to identify the witnesses who had requested anonymity or to furnish
the contents of their statements to Johnson. Although Morris concluded that he
should recommend to Murray that Johnson be demoted and transferred, he
nevertheless set up a second meeting with Johnson with the hope that Johnson
would "come back and tell the truth." At this second meeting, Morris again
refused to identify the witnesses or divulge the contents of their statements. He
did advise Johnson that he was recommending demotion and transfer and
suggested that Johnson go on paid annual leave until resolution of the
investigation. Morris forwarded the report to Murray who requested and
received statements from the officers who allegedly held Brown while Johnson
struck him. Based on the report and these statements, Murray concurred in
Morris' recommendation, and Johnson was demoted and transferred.

At least two accounts of the actions taken against Johnson appeared in the
press. On February 4, 1989, the Charlottesville Daily Progress reported that
Johnson had been "placed on paid annual leave pending an official review of
his performance." A spokesman for the Department of Corrections stated that
officials were investigating Johnson but "would not comment on the nature of
the investigation." On February 11, 1989, the Richmond Times Dispatch
reported that Johnson had been reassigned after an investigation "found he had
struck an inmate." The Times Dispatch also reported that a spokesman for
Murray confirmed that the investigation into "an allegation that an inmate was
struck proved the accusation to be 'well founded.' "

Johnson filed suit in federal district court against Murray and Morris alleging
that (1) he was denied his right to a state grievance procedure, (2) he was
deprived of a property interest without due process, and (3) he was deprived of
a liberty interest without due process. The district court dismissed the first two
counts pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.* After
a bench trial on the third count, the district court found that a liberty interest
was implicated by the public announcement of the reasons for Johnson's
demotion, that due process required notice and an opportunity to be heard, and
that Johnson had been denied both.

During discovery, Johnson received copies of the investigative file, including

all statements, the inmate file, and the personnel files of all employees of the
Department of Corrections who supplied information during the investigation.
This material was furnished to him pursuant to a protective order that limited its
use and prevented release of the information. After holding that due process
required that Johnson be given notice and a hearing, the district court lifted the
protective order for the purpose of allowing Johnson to use the information in

an informal name-clearing hearing. Although Murray had previously offered to

hold a name-clearing hearing for Johnson, the district court agreed with
Johnson's contention that the hearing would not provide him with a meaningful
opportunity to clear his name unless he was given access to the identities and
statements of the witnesses. After the district court lifted the protective order to
allow Johnson to use this material, Johnson inexplicably declined to participate
in a name-clearing hearing. Indeed, at oral argument counsel for Murray and
Morris represented that the offer to hold a hearing remained open. In response
to a question from the court, Johnson's counsel stated that Johnson would
continue to decline this offer. No reason was given other than that Johnson,
even though given full opportunity, simply had no desire to participate in a
hearing.
II.
10

The issue here is whether Johnson was deprived of a liberty interest because a
public announcement of the reasons for his demotion was made. "[I]n order to
claim entitlement to the protections of the due process clause ... a plaintiff must
first show that he has a constitutionally protected 'liberty' or 'property' interest,
and that he has been 'deprived' of that protected interest by some form of 'state
action.' " Stone v. University of Maryland Medical Sys. Corp., 855 F.2d 167,
172 (4th Cir.1988) (citations omitted). The Supreme Court has acknowledged
that " '[w]here a person's good name, reputation, honor, or integrity is at stake
because of what the government is doing to him, notice and an opportunity to
be heard are essential.' " Board of Regents of State Colleges v. Roth, 408 U.S.
564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (quoting Wisconsin v.
Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971)).
The Court noted that "[t]he purpose of such notice and hearing is to provide the
person an opportunity to clear his name." Id. 408 U.S. at 573 n. 12, 92 S.Ct. at
2707 n. 12. We have recognized that a liberty interest is implicated by public
announcement of reasons for an employee's discharge. See Boston v. Webb,
783 F.2d 1163, 1166 (4th Cir.1986). In Boston the interest was defined as "that
of being free from arbitrary restrictions upon the opportunity for other gainful
employment stemming from the reasons voluntarily given by government for
lawfully terminating ... at-will public employment." Id. at 1167. It should be
noted that the interest protected is "not to remain employed ... but ... merely to
'clear [one's] name' against unfounded charges." Id.

11

The district court noted that although Johnson was not discharged, there was a
public announcement of the reasons for his demotion and transfer and that this
was sufficient to implicate a liberty interest. The court reasoned that Johnson's
career had been "derailed" and to deny him a protected liberty interest simply

because he was not discharged "would be recognizing a distinction without a

difference."
III.
12

We do not agree that a liberty interest was implicated. Publication of

stigmatizing charges alone, without damage to "tangible interests such as
employment," does not invoke the due process clause. Paul v. Davis, 424 U.S.
693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). As the Supreme Court
pointed out in Paul, "[t]he words 'liberty' and 'property' as used in the
Fourteenth Amendment do not in terms single out reputation as a candidate for
special protection over and above other interests that may be protected by state
law." Id. Thus, for a liberty interest to have been implicated, some damage to
Johnson's employment status must have resulted from publication of the
reasons for his demotion.

13

Johnson, who remains employed with the Department of Corrections, suffered

no damage to his employment status as a result of the publications. His
situation differs from that in which a discharged employee's "opportunity for
other gainful employment" is thwarted by the publication of the reasons for his
discharge. See Boston, 783 F.2d at 1167. We agree with the Seventh Circuit
which held that when a police officer is suspended but not discharged he
"cannot complain that he has been made unemployable; he remains employed."
Hershinow v. Bonamarte, 735 F.2d 264, 266 (7th Cir.1984).

14

Johnson contends, however, that future career opportunities with the

Department of Corrections have been adversely affected. Perhaps, but
nevertheless any "derailment" of his career caused by the demotion and transfer
was the result of the findings made by Murray and Morris, not the result of the
publication of those findings. It may be true that Johnson's chances for
advancement within the Department of Corrections may now be limited. "But if
that were a basis for claiming damages for a deprivation of liberty, ... the
federal courts would become the grievance machinery for public-sector
employees." Id. Because Johnson has not been deprived of a liberty interest, the
order of the district court holding that he is entitled to notice and a hearing is
reversed. Because Johnson has rejected all offers to hold a name-clearing
hearing, the order of the district court lifting the protective order to allow him
to use material obtained during discovery is also reversed. Consequently, the
district court is directed to enter judgment for appellants.

15

REVERSED.

Johnson does not appeal the dismissal of these counts